Rule of law

OK, I'll talk about the words even if the concept of meaning has taken a small beating this week.

You know, if they'd said "state exchanges," I could see the argument for ambiguity. That might mean either "an exchange operating in a state" or "an exchange established by a state, as opposed to one established by the feds." How anyone can think "exchange established by a state" is ambiguous in a statute that involves both kinds is really beyond me, particular with evidence that the whole point was to give states an irresistible incentive to set up their own exchanges and not dump the task onto the feds. The states' refusal to set up their own exchanges became a conceivable choice only after the S. Ct. struck down the Medicaid penalty as too coercive, which is the main reason the remaining law now strikes many people as "internally contradictory." That is, it always was a little bizarre that state exchanges would be denied subsidies, but no one paid much attention because they could barely entertain the notion that it would ever happen--and it never would have happened, in all likelihood, until Justice Roberts re-wrote the ACA the first time.

The only way to read "exchange established by a state" as "exchange established by anyone you like" is to demand a certain result and twist the words and standards as necessary. Which is pretty much what the majority opinion announced it was doing: it said the plaintiffs' interpretation was right, but going along with it would be too inconvenient. So the trial court said the language was unambiguous and meant what the White House said. The appellate court said it was ambiguous but meant what the White House said. The Supreme Court said the most obvious reading was that it meant the opposite of what the White House said, but it would be re-interpreted that way anyway because we wish Congress had written something different or at least had employed competent draftsmen.

This doesn't surprise anyone about the liberal judges or even Kennedy. Many of us hoped that Roberts's bizarre "it's a tax/it's a floor wax" approach the last time around was an aberration, but now we see it wasn't, at least not when the stakes are high.

A commenter I appreciate at Megan McArdle's site has been asking people for months now to provide her with an example of improved language that would make "exchange established by a state" unambiguous, if your purpose was to make it clear that exchanges established by the feds would not be eligible for subsidies. She never gets any takers. The most frequent response amounts to "Huh?"

There's been a lot of yelling back and forth about U.S. v. Gore and Heller and Citizens United and whether rightwingers are really consistent about precision of language. I won't for one instant try to argue that you can resolve constitutional disputes without dealing with flexibility and ambiguity in the use of language, especially centuries-old language with a long history and a complicated context. But King v. Burwell was a statutory interpretation case. That's a special animal, where we have precise and useful tools for deciding when the judicial branch should intrude on the legislative branch's prerogatives. The rule is: first the language has to be ambiguous, and only then can you consider the drafters' intent. That's not just my personal opinion of the rule; it's the formulation of the rule confirmed by the majority opinion in King. v. Burwell. If the language is not ambiguous, but the law still stinks and is unworkable, you send it back to Congress for fixing. If Congress has changed its mind in the meantime, tough.

In this case, I personally would have found the drafters' intent a slam-dunk once Gruber shot his mouth off, but let's assume he was lying when he first shot his mouth off and not when he retracted all his previous statements. The fact is, we shouldn't be looking at intent at all, because the argument that the language in question is ambiguous is laughable. Yes, it's "only five words in a 2,000-page bill," but they happen to be the only five words in 2,000 pages that bear directly on the point in dispute. Very, very disappointing, even for someone with no illusions about the Supreme Court consisting of saintly and courageous geniuses.

5 comments:

The meaning is perfectly clear, so we'll alter it. The only reason we got here is because we altered it before, so we obviously have the duty to alter it again. We've got to make this thing work. Congress clearly intended to improve and not destroy the insurance markets -- that last one is an amazing justification. Presumably that means that any bad effect on the insurance markets would then justify a 'reconsideration' of the 'meaning' of the law to make it work better. After all, Congress' intent was to do good things for insurance markets, so obviously the law must (somehow) work that way!

Yes, after considerable patience yesterday, I got him to say something very like that. The next step is: do we agree that's unambiguous now? Yes, it's nice and clear. Now, is it one whit less inconsistent with the "entire purpose of the statutory scheme" and so forth? In other words, would the Court have ruled exactly the same way even if this clearer language had been used instead? Well, no, of course not. The language still would have been viewed as hugely disruptive and counterproductive, and the Court would have had to correct it so that subsidies continued, because the overarching purpose is that people must get their coverage one way or another, that's the whole point of the law and obviously the crux of Congress's "intent."

The point is that what the Court did was not to interpret some ambiguous language by inquiring into the underlying intent. When a Court interprets ambiguous language, there are at least two natural readings, and it simply chooses the one that fits best; it doesn't make up anything new. What this Court did was fix what is most honestly described as a glitch, an outright error. (Which itself requires assuming that Gruber was lying the first time around; a very natural reading is that Congress always intended the subsidies as a carrot-and-stick gambit. But let's pretend it was an error.) Our statutory interpretation tradition provides that the Court can settle on one of several plausible meanings for ambiguous language, but if the language simply needs to be corrected, that's a job for the legislative branch. Legislatures pass technical amendments all the time.

My interlocutor at McArdle's site reached this point in the discussion and simply fell back to, "But courts have to interpret ambiguous language, because all language is irreducibly ambiguous, and the world would grind to a halt otherwise. Besides, intent is all that matters."

The Court might have ruled that Congress' intent was to punish the states, but that it had itself screwed that up by partially disabling the punitive mechanism because of it unconstitutionality. Thus, they could have said, they now felt obligated to change the rest of the law so it still works more or less as intended.

Not that they have the constitutional authority to rewrite laws to suit them, but that's what they've decided to do anyway, so why not be explicit about it?

It would be understandable if the Court felt obligated to do something like that, but it's a feeling the Court is supposed to suppress. That's not its job. If it can strike a provision and leave the rest of the law standing, that's kosher. (That's what it did in the first ACA decision.) If the troublesome provision isn't severable, it's supposed to strike the whole law and let Congress deal with replacing it. And that's only if the Court is being asked to strike a provision as un-Constitutional; in this case, no one was arguing that. The plaintiffs were merely asking the Court to uphold the law as written and prohibit the executive branch from re-drafting by fiat. So instead the Court redrafted it by fiat. That's two branches sticking their nose in, but only the third branch is supposed to have that function.

The problem here isn't that there isn't a perfectly good Constitutional solution. The problem is that the Court (like the White House) prefers what a former Congress did and distrusts what the current Congress would do. The Court isn't supposed to have an opinion about which Congress is preferable. That's for the voters to decide.